February 2017Vol. 31, No. 1

IN THIS ISSUE:

Serving our Communitypage 2

Responding to MedicalBoard Complaintspage 3

Understanding Prescription Drug Coveragepage 4- 5

MCR in the Newspage 5

Veteran’s DisabilityClaimspage 6

“Any Thing Goes”Art Showpage 7

Vulnerable Adult Claimspage 8

Legal items of interest to our clients and friends

Lowell Rothschild

C av eat

Mesch Clark Rothschild has grown steadily over 60 years to comprise now more than 40 paralegals, staff and attorneys. Our experience and well-earned reputation for skill and dedication provides our clients a high level of expertise and reliability. MCR lawyers’ public service and community involvement have touched all corners of Tucson and Marana.

As noted by Lowell Rothschild, one of our founding partners, “We have been solving business matters, trying cases, and providing legal counsel for more than five decades.” MCR’s tradition of excellence continues through the support and solutions these dedicated professionals provide.

MCR was founded as a general practice law firm, with each attorney focusing his or her practice on their clients’ unique, complex, business and legal concerns. This edition of the Caveat illustrates the firm’s healthcare practice, including a salute to emerging leaders like Andrea Logue, who is trying to help define the scope of licensure for “Community Health Workers,” healthcare workers frequently used in Arizona’s rural, agricultural, and tribal communities to help manage care of residents with chronic diseases in these underserved areas.

A Tradition of Excellence

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Serving Our Community

1See Handbook on Arizona’s Sunset and Sunrise Review, 2015-2016 Ed., http://www.azleg.gov/Sunset_Review.pdf accessed 12/6/2016, p. 22.

As a lawyer focused on health care regulation, I have been fortunate to engage with, mentor, and, most importantly, learn from bright law students who are interested in health law as a career focus.

Andrea Logue is one such individual. She is pursuing a degree in Public Health in addition to her law degree. Andrea has already contributed a great deal to the health care landscape ahead of her May 2017 graduation.

Consistent with her passion, Andrea worked this year to submit a Sunrise Application for the establishment of a voluntary certification program for Community Health Workers (CHWs) in Arizona. Established by law, a sunrise review process is a way for health professionals to request an expansion in scope of practice.1

CHWs were recognized as an important part of the health care delivery care team under the Patient Protection and Affordable Care Act (PPACA), also referred to as “Obamacare.” They bridge the gap between patients and health care providers and are often trusted members of their local communities, assisting patients with it comes to understanding and accomplishing health care goals.

They provide health care education and explanation in a culturally competent matter. As one can only imagine, CHWs are an important link to effective chronic disease management (conditions such as diabetes and heart disease) to reduce hospitalizations, particularly in Arizona’s rural and tribal communities. However, CHW competencies and scope of practice were not well recognized and there were no mechanisms for long term sustainability of the work force. The lack of understanding among health care providers and the community at large hinders CHWs from being viewed as professionals in a health care setting. Without formal recognition and certification, it is difficult to reimburse CHW services and thus sustain the workforce.

In Andrea’s words:Completing the Sunrise Application itself was a difficult task. The Application consisted of eight questions with specific details about what changes any newly proposed regulations would have on the current state of healthcare in Arizona. Completing the Application took a great deal of time and patience, but once it was completed the real challenge of building a constituency for the legislation began. Working on this project, I better understood the importance of laying the groundwork and connecting with stakeholders to move legislation forward.

With the support and wisdom of my mentors and advisors at The College of Public Health, I began to realize that legislation on paper is nothing without supporters to back it and help move it forward. I worked closely with CHWs,

tribal leaders, and Arizona Senators and Representatives to not only modify and improve the Sunrise Application, but also to lay the groundwork and get people talking about the valuable work of CHWs. Forming these connections and pursuing a change to this area of Arizona’s health law has finally paid off. The completed Sunrise Application was submitted to the legislature on September 1, and the CHW Sunrise Application will be presented to the Senate Health and Human Services and House Health Committee of Reference on December 16, 2016.

I have been so grateful to have had the opportunity to work on this project which has already opened other doors for me. The policy experienced I gained through this project allowed me to spend this past summer at The Centers for Disease Control and Prevention in the Office of the General Counsel. In my final semester of law school I have accepted an externship position working with the Arizona State Legislature. I am looking forward to improving my legal experience and knowledge over the next semester and I am preparing to graduate as a JD/MPH in May, 2017.

Without a doubt, Arizona will continue to benefit from the exceptional talent of law students like Andrea Logue. With so many uncertainties in the health care space, having talent like that demonstrated by Andrea Logue remain in Arizona is truly something to be celebrated.

Andrea Logue

By Susan Goodman

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Responding to Medical Board Complaints

Painful though it may be, imagine going through mail delivered one morning and finding a letter from the Arizona Medical Board. You open the letter and your eyes become fixated on the first paragraph that reads:

Pursuant to A.R.S. §32-1451(A), you are being notified that the Arizona Medical Board (Board) received a complaint and an investigation has been opened to determine if further review is required. Attached is a copy of the complaint in its entirety. Nothing is required of you at this time. Should the investigation merit further review, you will be contacted by an investigator to provide a written detailed narrative and any other necessary information.

Criticism and allegations are hardly welcomed feedback from patients. But the reality of clinical practice is that patients often find reasons to complain despite one’s best efforts to provide good care.

Perhaps find solace in the fact that a typical physician might receive one of these complaints only every few years. You can also find solace in the Board’s notice that nothing is required of you at the time and that a large percentage of complaints are dismissed without an input from the doctor accused.

Imagine now receiving a follow up letter. This time you’re told that an investigation has been opened. You are now asked to provide a complete narrative response to allegations made against you. You’re further told that: “A medical consultant will review the underlying records.”

This letter is likely to incite additional anger, fear and a defensive response. Don’t let these emotions drive your response. Instead, remember these tips in formulating a response:

• Accept the fact that a response is necessary.

• Cool off and avoid responding while those emotions prevail.

• Recognize the value of a good response.

• Make sure relevant information about the case is available. You will need to provide a factual account of what happened, and pulling and reviewing your files may take time.

• Recognize and appreciate the benefit of consulting someone with knowledge, expertise and experience of handling these matters before the Board.

• Get help. If there are allegations of damage as a result of your alleged conduct, notify your insurance company or legal advisor as soon as possible. They will undoubtedly assign counsel to make sure the response is prepared properly.

Physicians should be able to resolve the matter of a formal patient complaint with minimal agonizing. The key is to take a systematic and careful approach so that one can prepare a carefully worded letter that meets the deadline, includes a factual account of what happened, does not speculate and addresses the patient’s specific complaint.

By Richard Davis

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For many, the costs of prescription coverage are significant. Consumers typically have insurance to offset the cost of prescription drugs through a commercial insurance policy, Medicare or AHCCCS, or some other government insurance plan such as military or Indian Health benefits. As we anticipate post-election changes in the Patient Protection and Affordable Care Act (“PPACA”), we should be mindful of several key principles surrounding prescription drug coverage including:

deductible – the amount you have to pay before any insurance coverage kicks in

co-payment – a set amount you pay for each prescription, may vary depending on generic or brand classification

co-insurance – a percentage (for example 25%) that you pay as your share of cost for a prescription

coverage restrictions – add an approval process to get coverage for a prescription – examples include quantity limits or step therapy

annual open enrollment period – the time period that your benefit plan allows you to renew or change your health benefits

special enrollment period – a limited time period (typically about 30 days) after a qualifying event that allows you to change your health benefits (examples include, birth of a child, death of a spouse, and job changes)

formulary – a listing, by insurance provider, of prescription drugs (generic and brand name) that have been reviewed by some sort of committee and been determined to offer the greatest overall value

brand name drug – medication that is still protected by a patent, allowing the pharmaceutical company exclusive rights to sell the medication; the retail cost of these drugs typically will remain high during this period of limited competition

generic drug – drugs that are comparable to brand name drugs in dosage, strength, intended use, and performance characteristics

preferred drugs or pharmacies – the insurance plan negotiates pricing with drug manufacturers or pharmacy companies and will prefer those offering the best value (e.g., best pricing)

tiered plans/charges – different levels of co-pays or co-insurance costs depending on the drug classification established by each insurance plan

creditable coverage – is defined as coverage that meets a minimum set of qualifications

quantity limits – a coverage restriction limiting the dosage or quantity of the drug prescribed, requiring additional steps for your physician to justify why the dosage or quantity is necessary to treat your medical condition

step therapy – a coverage restriction requiring that you first try a less expensive drug before it will cover the more expensive one, including physician documentation to support why the less expensive drug was not effective (e.g. did not manage the symptoms, had side effects, etc.)

out-of-pocket limit/maximum – the most you pay in deductibles, co-pays, and co-insurance before your health plan pays all the costs. Premium payments and out-of-plan costs do not count toward this cap.

Understanding Prescription Drug Coverage By Susan Goodman

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Understanding what type of prescription drug coverage comes with a given insurance plan is more important than ever. Drug formularies change with regularity. Do not assume your prescription continues to be on the formulary just because it was covered during the prior plan period.

For Medicare recipients, there are two ways to secure prescription drug coverage: (1) through a Medicare Prescription Drug Plan (typically thought of as Medicare Part D); or, (2) through a Medicare Advantage Plan (HMO or PPO) or other Medicare health plan offering prescription drug coverage (Medicare Advantage plans are also referred to as Medicare Part C). You must live in the service area of the drug plan to qualify for coverage. This consideration is quite important for “snow birds.” In addition to the monthly premiums, Medicare recipients with higher annual incomes (above $85,000 for an individual return and $170,000 for a joint return) are also charged an additional income-related monthly adjustment amount or IMRAA. That monthly amount ranges from $13.30 to $76.20 in 2017.

Medicare recipients are also familiar with the infamous “doughnut hole” – the gap between initial coverage limits (coverage after the deductible is paid) and catastrophic coverage. In 2017, the gap will lie between $3,700 and $4,950 of prescription spending. A part of the PPACA was a plan to dramatically close this gap by 2020 by steadily decreasing the percentage amount seniors pay for prescriptions while in the coverage gap. In 2017, recipients are scheduled to pay no more than 40% of the price for brand name drugs and 51% for generic. Additionally, the manufacturer discount payment on brand prescriptions (55% in 2017) also counts toward the out-of-pocket calculation.

With Trump’s election promise to “repeal Obamacare,” the status of drug coverage will be huge part of what is on the minds of Americans, particularly those with high chronic prescription management costs. Moreover, recent news coverage surrounding both the jaw-dropping prescription price increases (e.g. anti-malaria drug Daraprim increased 5,000% last year and Mylan’s EpiPen increased from $300 to $600/unit over a two-year period) and costs for new blockbuster drugs (e.g. Harvoni/Sovaldi for the treatment of Hepatitis C carry price tags of $1,000 or more per pill) make for some important policy discussions on prescription drug costs.

MCR in the News

Gary Cohen, partner at Mesch Clark Rothschild, was inducted on February 1st as an Honorary Commander of the 79th Rescue Squadron at Davis-Monthan Air Force Base here in Tucson Arizona. As an Honorary Commander, Cohen will participate in a range of unit and base events, ranging from hails and farewells, unit picnics, holiday parties, awards ceremonies, the annual Fourth of July celebration and the biennial base open house at the same time he learns more about the Air Force and Davis-Monthan Air Force Base and gains a better understanding of the diverse missions based at Davis-Monthan. He will also attend a number of more formal social events, such as Airman Leadership School graduations, Changes of Command, and the biennial Air Force Ball. Finally, and interact with the amazing base airman.

Main Gate sign wikipedia.org

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For most of the 20th Century the U.S. Department of Veterans Affairs (or the “VA”) and its predecessor, operated free from judicial oversight. This unique status lasted until the Veterans Judicial Review Act of 1988 (the “VJRA”). As the House Committee on Veterans Affairs, which consistently resisted efforts to change the status quo, observed at the time, “The Veterans Administration stands in splendid isolation as the single, federal administrative agency whose major functions are explicitly insulated from judicial review.”

Veterans’ law has undergone a dramatic change over the 27 years since passage of the VJRA. The VJRA has transformed veterans law by allowing those applying for federal veterans benefits to appeal their claims to a federal court. Thus, claimants have a new forum – another bite of the apple – in which to win entitlement to benefits.

Statistics maintained by the Board of Veterans Appeals (“BVA”) and the U.S. Court of Appeals for Veterans Claims (“CAVC”) demonstrate that since passage of the VJRA the chance of ultimately being successful on a claim has greatly increased. Just as significantly, the percentage of BVA appeals that were remanded to a VA Regional Office because of the need for further evidentiary development and readjudication mushroomed after the VJRA. Many of these remands undoubtedly resulted in an award of benefits.

The bottom line is that before the VJRA, the BVA would consistently deny benefits in over two-thirds of all appeals. For each fiscal year since the VJRA, it has consistently denied benefits in a much lower percentage of appeals. There can be no doubt that, without judicial oversight, many VA claimants would not have been granted the benefits they need and deserve.

But the statistics reveal another pervasive problem. Although the VA is obligated to assist claimants in obtaining the evidence necessary to substantiate their claims, thousands of claims are sent back to the VA Regional Office because the Regional Office failed to assist the claimant.

Regional Offices often provide some assistance. But, the demand on Regional Offices is overwhelming. The impact of the wars in Iraq and Afghanistan has exacerbated an already large back log of VA claims and appeals. Veterans of these wars have flooded the VA with new disability claims at the same

time the agency is being pressed to correct errors in thousands of older cases.

Being proactive by hiring counsel increases the probability that the claim will be granted, especially when it comes to assembling medical evidence. An important aspect of a disability claim is scheduling a VA medical examination to obtain a diagnosis of the claimed disability and obtaining a medical opinion supporting that the claimed disability resulted from an event, disease, or injury that occurred during military service. The VA usually turns to the physicians employed by the VA for both the medical diagnosis and the medical opinion.

But a claim is also adequately supported if the veteran already has, or can obtain a medical opinion and diagnosis from a private physician, linking the current condition to military service and the veteran submits these documents with or shortly after the claim has been filed. The VA may accept the independent medical opinion and grant the claim, or the VA may nonetheless schedule the veteran for a VA medical examination and obtain a medical opinion from its own physicians. Either way, the veteran still has an advantage. The supporting medical evidence is now part of the record and may reasonably be supported by the VA physician.

Effective advocacy requires any understanding of what evidence is needed to win and working with the claimant to obtain and submit that evidence. These time-consuming activities require competence and commitment to support the best interests of the veteran.

Veteran’s Disability ClaimsBy Patrick Lopez

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“Any Thing Goes”

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Vulnerable Adult Claims

Arizona’s legislature created a cause of action against people who abuse or harm vulnerable adults. The statute appears in the Adult Protective Services Act or APSA, under which a Plaintiff must establish the following: a) the patient was a vulnerable adult; b) UMC was an enterprise that was hired to provide care; c) UMC abused, neglected or exploited decedent; and d) decedent was injured as a result of the alleged abuse, neglect or exploitation.

A ‘vulnerable adult’ is an individual eighteen years or older “who is unable to protect himself from abuse, neglect, or exploitation by others because of a physical or mental impairment.”

An actionable claim of ‘neglect’ under APSA (1) must arise from the relationship of the caregiver and recipient; 2) must be closely connected to that relationship; 3) must be linked to the service the caregiver undertook because of the recipient’s incapacity; and 4) must be related to the problem or problems

that caused the incapacity. Actionable ‘abuse,’ on the other hand, may be the result of intentional or negligent harm.

Arizona courts struggle with identifying a line between claims actionable under APSA versus those allowed by Arizona’s Medical Malpractice Act (the MMA). The courts have long recognized that some negligent acts that constitute medical malpractice should not be actionable under APSA. Several years ago, the Arizona Supreme Court held for the first time that hospitals could be liable for APSA violations but attempted to restrict actionable grounds to those when a “plaintiff is able to show a pattern of conduct...resulting in deprivation of food, water, medication, medical services, shelter, cooling, heating or other services necessary to maintain minimum physical or mental health.’” Physicians or Physician Assistants typically are immune from APSA liability unless serving as the medical director of a facility such as a residential care facility or otherwise

responsible for the patient’s care while at such a facility. The facilities are not immune. Primary Care Providers are immune from liability for services provided to the patient in the two years before the patient’s admission to such a facility, and medical specialists are deemed not to be Primary Care Providers (unless they assume that responsibility).

The interplay between medical malpractice claims and APSA claims means that courts will continue to have to differentiate between these types of claims in the coming years. Our lawyers are available to consult with you if you have any questions about these types of claims.

By Richard Davis